We are working with the leading critical legal journal Law & Critique to bring their brilliant output to a broader audience. Many of the papers published with Law & Critique will be accompanied by a shorter discussion on Critical Legal Thinking. In this case, please check out Millar Jeff Dorce, Alex Alexis and Caleb MacBernard Dorce’s full article which is available on the Law & Critique site.

In Mapping the Invisible Landscape, Kent C. Ryden (1993) describes the “invisible landscape” as a territory as it exists in the imagination, on maps, in memories, and in the narratives of those who traverse it and live there on a daily basis – a living dialogue between territory, perception, and experience that gives meaning to the place. There is such a significant and enduring interplay between place and the perceptions of those who inhabit it that the two cannot be separated. Place provides the foundation for a structure of experiences, memories, myths, and behaviours. People who are familiar with the place share this subjective component of memories and experiences, which shapes the way they understand the world. In this article, the concept of the “invisible landscape” is used to refer to the ontologies, epistemologies, and all the spiritual and normative dimensions through which Indigenous peoples and local communities (IPLCs) relate to their territories. Outsiders, by contrast, who merely pass through, are often unaware of this invisible dimension, especially when they arrive with the sole intention of exploiting the territory. The investor provides a particularly illustrative example. Enchanted by the prospect of striking gold and always ready to bleed the earth dry, the investor pays little attention to the worldview of local communities. The instrumental rationality that drives the investor as a homo pecuniae and leads him to view land primarily as a resource to be exploited stands in stark contrast to the perspective of local people, who may understand the land as a sacred universe from which they derive meaning, identity, and a sense of humanity. In the current global economic order – that is, in a context in which Indigenous peoples and local communities (IPLCs) continue to lose their lands in the name of arguments disguised as progress and modernization – the code of capital (Pistor 2019) has aligned itself with the rhetoric of profit and privilege. It is therefore not merely out of ignorance that the arguments of IPLCs are disregarded when they seek to assert their rights over lands granted to mining companies. International investment law, and particularly the arbitration mechanism through which it is enforced, is rooted in this framework that often fails to recognize the validity of IPLCs’ cognitive and cultural landscape or the need to preserve them. In 2016, the United Nations Special Rapporteur on the Rights of Indigenous Peoples, Victoria Tauli-Corpuz, reported violations of Indigenous peoples’ rights to the protection and preservation of their lands, self-government, and culture (United Nations 2016). In investment disputes affecting their landscapes, IPLCs have rarely been given an effective opportunity to share their stories, memories, and worldviews. In most cases, their voices have been ignored.

Seduced by the promise of salvation through economic development, governments in formerly colonized territories may also contribute to the erasure of local narratives and forms of knowledge. According to Quijano (1992), the seduction of the imaginary of the elites of the Global South is one of the effective mechanisms through which powerful states perpetuate the structures of power, values, and modes of knowledge established since the emergence of modern colonialism. The concept of coloniality – which differs from colonialism, understood as the formal occupation and administration of colonized territories – refers to the enduring matrix of power through which colonial relations continue to organize knowledge, institutions, norms, language, bodies, and social hierarchies (Quijano 1992; Maldonado-Torres 2007; Mignolo 2011). Today, alongside powerful states and large Western corporations, elites in formerly colonized countries may reproduce hegemonic forms of domination by participating uncritically in the global economic order and promoting an extractive economy model. As victims of the collusion between the state and the transnational economic order, IPLCs are trapped in what Shivji calls a “double hegemonic logic” – that is, a form of domination that is simultaneously imperialist and statist (1999). An extractive economic model entails land dispossession, forced displacement, ecosystem degradation, and the destruction of cultural heritage, often at the expense of Indigenous forms of governance (Penados et al. 2023). This situation compels IPLCs to oppose both investment activities that threaten their environments and the hegemonic claims of states to exclusive authority over natural resources.

Disputes surrounding extractive activities have highlighted the invisibility of the cognitive landscape of IPLCs. In these disputes, a central issue has been the right of Indigenous peoples to “free, prior, and informed consent” regarding development projects on their territories. The most controversial questions are therefore: What constitutes “consent” to extraction? To what extent can such consent be considered free? How much room must there be for alternatives to extraction before it can be said that communities are genuinely “choosing” an extractive project? These issues have not been satisfactorily addressed within investment law. In Bear Creek v. Peru, Peru revoked a mining concession on the grounds that the Canadian investor had failed to consult with, and obtain the consent of, the affected Indigenous peoples. Invoking the International Labour Organization’s (ILO) Convention concerning Indigenous and Tribal Peoples (No. 169) and the United Nations Declaration on the Rights of Indigenous Peoples, Peru argued that the revocation of the mining project – which was fundamentally motivated by social unrest among Indigenous peoples – was intended to protect their rights. The arbitral tribunal nevertheless ruled in favour of the investor, finding that Peru had already approved the investor’s permits, was aware of its activities, and therefore could not rely on the investor’s alleged failure to comply with ILO Convention No. 169.

In this case, the investment project had sparked strong opposition from the Aymara people, who sought to protect Mount Khapía. While the Canadian investor, Bear Creek, viewed the mountain primarily as a natural resource and site for development, the Indigenous peoples understood it as a sacred place inhabited and revered for centuries. This clash between different ontologies was central to the dispute. In their brief submitted as amici curiae, the Indigenous peoples argued that the conflict stemmed from the investor’s ineffective management of the project and insufficient engagement with local communities. They contended that the foreign company had failed to adequately consider the concerns, fears, cultural practices, and spiritual relationship of the Aymara people with their territory. They further argued that the company had failed to obtain the free, prior, and informed consent of the affected peoples and had breached its obligation to respect human rights. They emphasized that, for the Aymara people of the region, Mount Khapía is their Apu – that is, a sacred guardian deity. This mountain, understood as a guardian and protector of the community, constitutes a spiritual sanctuary of fundamental importance to the population of the region (Barelli 2012). Yet, although the tribunal accepted the amicus curiae brief, it ultimately concluded that the information contained therein was of no assistance in resolving the dispute.

This case illustrates how the voices and worldviews of IPLCs can be silenced within the global economic order. One explanation lies in the way international arbitration – the adjudicator of this global economic order, whose authority derives from investment treaties – functions as a relatively self-contained system. The system is marked by biases that may lead it to place excessive weight on its own preconceptions, which are often Euro-North-American-centric and oriented toward the protection of economic interests, while discounting evidence that challenges them (Reed 2012). Structured around the protection of investment expectations, investment arbitration has historically been reluctant to engage with broader social concerns, including environmental protection and the rights of IPLCs.

 More profoundly, this situation reveals the persistence of a deep-seated structure that marginalizes certain bodies and ways of knowing, as has been the case since the advent of modern colonialism. Investment arbitration can therefore be understood as a mechanism through which coloniality of being and knowledge may be reproduced. Regarding the coloniality of being, Maldonado-Torres explains that humanity has been subjected to a form of domination in which the colonized are relegated to subhuman categories of humanity (Maldonado-Torres 2007). Coloniality of being is characterized by what Maldonado-Torres calls misanthropic skepticism: an attitude of persistent suspicion regarding the humanity of those who have been colonized and enslaved. Such populations are relegated to what Fanon (1952) describes as “zones of non-being.” These “zones of non-being” can also be understood as “zones of non-knowledge,” insofar as the process of differentiation through which colonized peoples are constructed as inferior simultaneously marginalizes their cultures, knowledge systems, and ways of understanding the world. Like the global economic order that sustains it, international arbitration does not adequately recognize IPLCs as autonomous epistemic subjects possessing their own cognitive, normative, and ontological systems. It remains rooted in a universalist rationality that constructs and presents a particular conception of the world as a universal reality, thereby marginalizing alternative ontologies and epistemologies.

Despite the adoption of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), which marked an important shift in international recognition of Indigenous peoples’ rights, international investment law has not truly incorporated Indigenous peoples’ rights. Historically shaped by states of the Global North, investment treaties are principally designed to facilitate and protect investment activities, including activities carried out on Indigenous ancestral lands. These treaties also contain arbitration clauses that allow disputes between states and investors to be resolved before arbitral tribunals. The objectives promoted by these treaties do not align with those of IPLCs, who have neither participated in their drafting nor been represented in their negotiation. Moreover, the arbitration mechanisms established by these treaties provide limited opportunities for Indigenous peoples to participate effectively in disputes that directly affect their territories and rights. In other words, perspectives originating from Indigenous peoples are systematically devalued. Coloniality is evident in the ways in which investment treaties and the arbitral tribunals that interpret and apply them may dismiss, marginalize, or overlook the ontologies, epistemologies, and lived experiences of IPLCs. As a highly specialized field of technical knowledge (Koskenniemi 2006), investment treaty arbitration is far from being a space in which the epistemologies and expressions of IPLCs’ ways of life are given priority. The question, therefore, is whether this system should be abandoned altogether or instead fundamentally decolonized.

Moving from coloniality to decoloniality first requires challenging boundaries, recognizing the plurality of ontologies and epistemologies, and making room at the table for historically marginalized actors. Challenging these boundaries means questioning the language of profit and privilege and shifting priorities toward greater environmental, climate, and historical justice. Several authors have envisioned a decolonial approach aimed at exposing erasures and silences and bringing marginalized forms of knowledge and governance to the fore. In this vein, Mignolo and Escobar (2010) draw on the concept of the pluriverse – the coexistence of a plurality of cosmologies, ontologies, and epistemologies – to open the possibility of alternative futures. For arbitration to recognize this plurality of interconnected worlds, it must, in a sense, become like a newborn child, learning to speak anew. 

This process of relearning requires the cultivation of border thinking, which is a way of thinking about connection (Mignolo 2007). Border thinking creates space for shared experience as the foundation of a new and shared logic of knowledge (Mignolo 2007). The stakes here are enormous: they involve daring to imagine a forum for dispute resolution that is not confined to Washington, London, Paris, or Berlin, and that does not speak only their language.

Milcar Jeff Dorce

Ph. D in International Law

University of Bordeaux, Université Laval